Friday, October 14, 2005

FLAG'S POSITIONS ON RECENT DEVELOPMENTS (OCTOBER 8, 2005)

“Rule of Calibrated Preemptive Response.” On 21 September 2005, Executive Secretary Eduardo Ermita issued a statement on “unlawful mass actions” where he announced the “rule of calibrated preemptive response.” The following day, FLAG wrote Executive Secretary Ermita, seeking clarification of the “rule.” On 28 September 2005, Undersecretary Edwin R. Enrile replied to FLAG “emphasizing that calibrated pre-emptive response is not an exercise of any emergency power,” but “is the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order” and is “a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets.”

FLAG holds that the “rule of calibrated preemptive response” violates the Constitution and existing laws:

It does not have any legal basis or legal effect since the “rule” was promulgated by a press statement and affirmed by a letter response. To date, no law, or executive or administrative or similar order has been passed promulgating the “rule.”

It is void for vagueness, and arbitrary, since it delegates wide discretion without discernible standards to law enforcers to determine and act in “more pro-active and dynamic” ways to enforce existing laws, regulations and ordinances.

It is undue delegation of legislative power, since it effectively repeals the maximum tolerance policy enunciated in Batas Pambansa 880.

It is being used to silence legitimate dissent, as protestors who oppose the current administration are targeted for dispersal.

FLAG holds that the “no permit, no rally” provision in Batas Pambansa 880 is likewise unconstitutional:

The right to peaceably assemble is enshrined in the 1987 Constitution: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances” (Sec. 4, Article III, 1987 Constitution).

In a number of decisions, the Supreme Court upheld the right to peaceably assemble as a “necessary consequence of republican and democratic institutions, and the complement of the right of free speech” (US v. Bustos, et. al., No. 12592, 8 March 1918 (37 Phil. 731); US. V. Perfecto and Mendoza, No. 177493, 4 March 1922 (43 Phil. 58); among others). The Court further held that freedom of assembly “is entitled to be accorded utmost deference and respect” (Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983).

In Primicias v. Fugoso, L-1800, 27 January 1948 (80 Phil. 71), the Court held that an ordinance “conferring upon the Mayor power to grant or refuse to grant the permit, … would be tantamount to authorizing him to prohibit the use of the streets and other public places for holding of meetings, parades or processions” and that “would make the ordinance invalid and void or violative of the constitutional limitations.”

Executive Order No. 464 on Executive Privilege. On 26 September 2005, the President issued Executive Order No. 464, requiring all heads of departments of the executive branch, all senior officials of the executive departments, all generals, flag officers and “such other officers in the judgment of the Chief of Staff” of the Armed Forces of the Philippines, officers of the Philippine National Police with the rank of chief superintendent or higher and “such other officers in the judgment of the Chief of the PNP,” senior national security officials “in the judgment of the National Security Adviser,” and “such other officers as may be determined by the President” to secure the President’s prior consent before appearing before the Senate or the House of Representatives.

FLAG holds that Executive Order No. 464 is of doubtful constitutionality:

Executive privilege is not absolute and may not be based on a generalized need for confidentiality. In Almonte v. Vasquez, G.R. No. 95367, 23 May 1995, the Supreme Court held: “… while in cases which involve state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production, no similar excuse can be made for a privilege resting on other considerations.”

Executive Order No. 464 restricts the plenary power of Congress to legislate. Sec. 21, Art. VI of the 1987 Constitution grants Congress the power to conduct inquiries in aid of legislation; such power is indispensable to the exercise of legislative power. Congress cannot enact meaningful and relevant laws without determining the factual circumstances that surround, cause or perpetuate instances of executive abuse and anomalies in the exercise of executive power.

It removes the cloak of public accountability mandated by the 1987 Constitution (Sec. 1, Art. XI, 1987 Constitution), since it effectively prohibits all public officials from providing information on key policies and outcomes, and effectively prohibits Congress—and the general public—from determining whether ethical standards of performance and executive conduct are met.

It is undue delegation, since it grants broad discretion to the Armed Forces Chief of Staff, the Chief of the Philippine National Police, and the National Security Adviser, to determine who “in their judgment” are covered by executive privilege, without providing clear standards upon which to base that discretion.

It is ultra vires, since the President has absolutely no power to amend the Constitution. Sec. 22, Art. VI of the 1987 Constitution simply refers to heads of departments. Heads of departments refer solely to Cabinet Secretaries (see Record of the Constitutional Commission: Proceedings and Debates, Vol. II, pages 86, 133, 147, 149, 150-151). By requiring all public officials to secure the President’s prior consent before appearing before both Houses of Congress, the President has effectively amended Sec. 22, Art. VI of the 1987 Constitution—an act clearly outside the President’s authority and legitimate powers.

Alleged Forthcoming Proclamation of National Emergency. It is unclear whether the President will, indeed, proclaim a national emergency; it is also unclear what ground/s the President may use to justify such proclamation. There have been speculations that the President will issue a proclamation based on “clear and present danger of a terrorist attack.” Such ground is not authorized by the 1987 Constitution.

The 1987 Constitution enumerates the President’s emergency powers and the grounds under which the President may exercise such powers:

As Commander-in-Chief, the President may call out the Armed Forces of the Philippines, whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion (Sec. 18 (para. 1), Article VII, 1987 Constitution). This power was affirmed by the Supreme Court in Integrated Bar of the Philippines v. Zamora, et. al., G.R. No. 141284, 15 August 2000. This power is not subject to congressional approval.

As Commander-in-Chief, the President may suspend the privilege of the writ of habeas corpus, for a period not exceeding 60 days, in cases of invasion or rebellion and when public safety so requires (Sec. 18 (para. 1), Article VII, 1987 Constitution). This power is subject to congressional review and approval.

As Commander-in-Chief, the President may place the country or any part thereof under martial law, for a period not exceeding 60 days, in cases of invasion or rebellion and when public safety so requires (Sec. 18 (para. 1), Article VII, 1987 Constitution). This power is subject to congressional review and approval.

In times of national emergency, the President may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest, during the emergency and under reasonably prescribed terms (Sec. 17, Art. XII, 1987 Constitution).

In the interest of national welfare or defense, the President may establish and operate vital industries (Sec. 18, Art. XII, 1987 Constitution).

In the interest of national welfare or defense and upon payment of just compensation, the President may transfer to public ownership utilities and other enterprises to be operated by it (Sec. 18, Art. XII, 1987 Constitution).

FLAG holds that none of the grounds for the declaration of a national emergency currently exist; any proclamation of a state of emergency is thereof of doubtful constitutionality.

Anti Terrorism Act of 2005. On 4 October 2005, the House Committees on Justice and Foreign Affairs approved the “Anti-Terrorism Act of 2005.” FLAG has long opposed the anti-terrorism bills and submitted its Position Paper to Congress on 10 May 2005. The bill adopted by the House Committees does not take into consideration any of FLAG’s objections.

FLAG holds that the Anti Terrorism Act of 2005 violates the 1987 Constitution:

It is void for vagueness; the definition of terrorism is vague, overbroad and open to abuse.

It violates the right to privacy, free speech, freedom of assembly and association, and the right to liberty.

It is an illegitimate exercise of police power; the means employed to combat terrorism are not reasonable, are unduly oppressive and do not meet the public necessity it seeks to address.

It imposes the death penalty.

It punishes acts of terrorism that are already adequately punished by existing law.

About FLAG

The Free Legal Assistance Group (FLAG) is a nation-wide human rights lawyers organization committed to the protection and promotion of human rights and civil liberties. It was founded in 1974 by Jose W. Diokno, Lorenzo Tanada Sr. and Joker Arroyo.

It espouses a non-traditional view of law and society, the role of lawyers and the use of law as an instrument of societal transformation called Developmental Legal Advocacy (DLA). Among its many advocacies are those against political repression, military and police abuses, death penalty.

FLAG has taken the lead in prosecuting erring military and policemen; these efforts have led to landmark decisions in habeas corpus as well as command responsibility. It has also questioned, in appropriate cases, in the Supreme Court the constitutionality of the death penalty, and the Visiting Forces Agreement, among many others.

Through the use of primers, FAQs, statements and position papers, FLAG has also made full use of the educative function and role of lawyers, consistent with its belief that the legal process is but part of a larger process that should involve those who are directly affected by a problem.